In Ramphal -v- Department for Transport (DoT) 2015 the EAT has provided guidance on the extent to which HR professionals can legitimately take part in a disciplinary procedure. It held that, although an investigating or dismissing officer is entitled to seek guidance from HR, such advice should be limited to matters of law and procedure and they should not become involved in questions of culpability. Furthermore, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency.
Mr Ramphal was under investigation into allegations of possible misconduct in relation to his expense claims and use of hire cars. A Mr Goodchild, a manager with no previous experience of conducting disciplinary proceedings, was appointed to investigate and conduct the disciplinary hearing. He produced a first draft of a report which concluded that the explanations given by Mr Ramphal regarding his expenses were “plausible” and that the misuse of hire cars was “not deliberate”. Mr Goodchild concluded that Mr Ramphal was guilty of misconduct (rather than gross misconduct) and decided that he should be given a final written warning.
Mr Goodchild had several meetings with the DoT’s HR team following which (in the absence of any new evidence) the investigation report was revised several times and led to the final report concluding that Mr Ramphal had been guilty of gross misconduct (rather than just misconduct) and that he should be summarily dismissed.
The Employment Judge was “particularly exercised” by the apparent changes of mind by Mr Goodchild but nevertheless concluded that Mr Goodchild had taken the final decision and that the dismissal was fair.
On appeal, the EAT overturned the decision. In reliance on the Supreme Court decision in West London Mental Health NHS Trust -v- Chhabra 2013 (which had not been referred to the Employment Judge due to an administrative error), it held that whilst HR could provide advice on questions of law and procedure, including ensuring that all necessary matters have been addressed in a manner which achieves clarity, “the report had to be the product of the case investigator”. In this case, HR clearly involved themselves in issues of culpability which should have been reserved for Mr Goodchild, the changes to his report being “so striking that they [gave] rise to an inference of improper influence”. It remitted the case to the Employment Tribunal for them to decide whether the influence of HR was improper and, if so, whether it had a material effect on the ultimate decision of Mr Goodchild, both in relation to Mr Ramphal’s culpability and on the decision that he had been guilty of gross misconduct and should be summarily dismissed. The EAT went on to give the following guidance as to the permitted boundaries of HR involvement:
- HR must be very careful to limit advice to questions of law and procedure and avoid straying into areas of culpability.
- Beyond addressing issues of consistency, it is not for HR to advise on the appropriate sanction or on whether the finding should be one of simple misconduct or gross misconduct.
- An employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them.
- If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it will be unfair, all the more so if the employee has no knowledge of it.